453 F.

3d 1323

UNITED STATES of America, Plaintiff-Appellant,

v.
Max Frederick GRAY, Defendant-Appellee.
No. 05-15209 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 28, 2006.

Roberta Josephina Bodnar, Orlando, FL, for Plaintiff-Appellant.

Rosemary T. Cakmis, Federal Public Defender, Clarence W. Counts, Jr.,
Asst. Federal Public Defender, Craig L. Crawford, Orlando, FL, for
Defendant-Appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:

The government appeals Max Frederick Gray's 72-month sentence imposed for
distribution of child pornography in violation of 18 U.S.C. 2252A(a)(2)(A)
and (b)(1). We affirm.

During an investigation into a child pornography Web site, an undercover

officer received three emails containing images of child pornography from the
screen name "Tenabo Inc." After determining that the screen name belonged to
Gray, the officer obtained and executed a search warrant for Gray's residence.
Gray directed the officer to "the disk with the pictures of the children under 18
years of age performing sexual acts." A forensic analysis of Gray's computer
revealed more than 300 images of child pornography, some of which depicted
prepubescent children, and three images of child pornography that Gray had
sent to the undercover officer. Gray admitted that he had been downloading
sexually explicit images of children for about five years and had sent images
through the Internet to an individual in Ohio.

A federal grand jury indicted Gray for one count of distribution of child
pornography in violation of 2252(a)(2)(A) and (b)(1) and one count of
possession of child pornography in violation of 2252(A)(a)(5)(B) and (b)(2).
Gray initially pleaded not guilty to the charges but later requested a change of
plea hearing for which he failed to appear. The district court issued a bench
warrant for his arrest.

Gray was arrested in Indiana on November 29, 2004. Gray was in a vehicle at a
truck stop, broadcasting on a radio that he had a firearm for sale. Police arrived
at the scene and attempted to negotiate with him. During the negotiations, Gray
held a semi-automatic handgun to his head and told the officers that he had
missed his change of plea hearing. Gray ultimately surrendered and was
handcuffed without incident. He was arrested for disorderly conduct and
resisting law enforcement.

The government filed a motion for Gray to undergo a competency examination

based on the nature of his arrest, and the district court granted the motion.
Gray's evaluation indicated that he suffered from a depressive disorder and
appeared to meet the criteria for dysthymic disorder, a chronic mood disorder.
He admitted attempting suicide on four separate occasions. The competency
examiner concluded that Gray did not suffer from a severe mental disorder or
defect that would preclude his ability to understand the nature and
consequences of the proceedings against him or to assist his attorney in his own
defense.

On April 27, 2005, Gray pleaded guilty to one count of distribution of child
pornography pursuant to a plea agreement. The mandatory minimum term of
imprisonment for the offense is five years and the maximum term is twenty
years. 18 U.S.C. 2254(b)(1). At sentencing, Gray raised no objections to the
contents of the pre-sentence investigation report (PSI) and explained that he
was a 64-year-old man who had a history of health problems and who was
recently discharged from the hospital because of a heart condition. Gray
explained that he had never molested a child and except for a few matters in his
criminal history that were so old they could not be scored, he has been a lawabiding citizen. Gray stated that he had cooperated with the authorities, giving
them a complete statement and accepting full responsibility for his actions. "[I]t
was a bad decision on my part . . . but I am the one that made that decision, so .
. . it's up to me now to pay the price for making that choice." Gray said that he
was so troubled by his criminal conduct and conviction that he had attempted to
commit suicide the day of his arrest in Indiana. He stated that during the
incident he had only pointed a weapon at himself.

In determining Gray's sentence, the district court considered that Gray had set
up a screen name to carry out his offense, possessed as many as 300 child
pornography images, distributed some images, and failed to attend his plea
hearing. The court also explained that it would "take into consideration [Gray's]
age, [his] prior minimal record, [his] medical condition, and . . . [would] form a
sentence which it [felt was] reasonable under the circumstances." Finding
Gray's base offense level to be 34 and his criminal history category to be I, the
court indicated that Gray's guidelines range was 151 to 188 months
imprisonment. The court sentenced Gray to 72 months imprisonment, to be
followed by three years of supervised release. The government objected to the
sentence as being unreasonable.

The government contends that Gray's 72-month sentence is unreasonable

because the district court failed to give adequate weight to the guidelines range
or the factors set forth in 18 U.S.C. 3553(a). We review a district court's
sentence for reasonableness in light of the 3553(a) factors. United States v.
Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005);
United States v. Talley, 431 F.3d 784, 785-86 (11th Cir.2005). We must
determine whether the sentence imposed by the district court "fails to achieve
the purposes of sentencing as stated in section 3553(a)." Talley, 431 F.3d at
788. We have stated that "there is a range of reasonable sentences from which
the district court may choose." Id.

In United States v. Williams, 435 F.3d 1350 (11th Cir.2006), this Court held
that under the circumstances of that case a sentence less than half of the low
end of the guidelines was reasonable. Id. at 1353, 1356. The defendant was a
career offender convicted of selling $350 worth of crack cocaine. Id. at 135152. The district court sentenced him to 90 months imprisonment, well below
the applicable guidelines range of 188 to 235 months. Id. at 1351-53. We noted
that the court was not required to state on the record that it had considered each
3553(a) factor or to discuss each factor. Id. at 1353-54. We explained that "the
district court's statements over the course of the sentencing hearing show it
weighed the factors in 3553 and took into account Williams' individual
history and the nature of the charge against him when it determined to sentence
him to a lower term." Id. at 1355. We reasoned that this was "not a case where
the district court imposed a non-Guidelines sentence based solely on its
disagreement with the Guidelines." Id. Rather, "the district court correctly
calculated the Guidelines range and gave specific, valid reasons for sentencing
lower than the advisory range." Id.

10

Here, the district court gave specific, valid reasons for imposing a sentence that

was lower than the guidelines range. See Williams, 435 F.3d at 1355. The
court's statements at sentencing reflect that it took into account Gray's age, his
prior minimal criminal record, and his medical condition. These are all valid
considerations because they relate to the "history and characteristics of the
defendant." See 18 U.S.C. 3553(a)(1). The court weighed these factors
against "the nature and circumstances of the offense" and decided to impose a
non-guidelines sentence. See id. There is no indication that the court imposed
the lower sentence solely because it disagreed with the guidelines. See
Williams, 435 F.3d at 1355. Rather, the court's statements show that it believed
the 72-month sentence to be reasonable. Although Gray's sentence is less than
half the 151 months that defines the bottom of the guidelines range, under the
circumstances and given the district court's explanation we cannot say that is
unreasonable in light of the 3553(a) factors.
11

AFFIRMED.